The UNIDROIT Principles of International Commercial Contracts and ...

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384 (2002) 36 R.J.T. 375 F rom a substantive or material perspective, when the parties choose to incorporate the Principles into the international contract, directly or by mere reference, their rules become substantive contractual norms. Such norms shall rule the interpretation, content, p e rf o rmance and non-perf o rmance of the contract, according to the provisions and respective commentaries included in the Principles. We can distinguish, in this particular application of the Principles, the expression of the principle of contractual freedom, which allow the parties to self-regulate their private interests and constitutes an important legal pillar of trade, both domestic and international. It is noteworthy that, in the area of international trade, the parties’ contractual freedom becomes even more important as trade flo w s become freer and more competition-oriented. Contractual freedom finds limitations in some economic sectors w h e re there exists no free and fair competition – such as in monopolized or oligopolized sectors, in which the public intere s t arises to prevent the rise of open markets 11 . The contractual freedom principle is also rejected in cases where mandatory rules, of both national, international or supranational nature exist, e.g., to establish money exchange controls, restrictions to economic concentration or special clauses, and in those situations they shall always prevail upon the provisions contained in the Principles 12 . F rom a conflicts-of-laws perspective, when the parties to an international contract choose the Principles as the applicable law, both to interpret and govern their transaction, the grounds for such a choice derive from the choice-of-law principle established in private international law rules. Already five centuries old, the principle was first elaborated by the French jurist Charles Dumoulin, being subsequently adopted in Europe, by several doctrinal schools, before it spread to other continents 13 . Functioning as an international echo of the substantive principle of contractual freedom, the choice-of-law autonomy provides the agents of international trade with a practical and pre d i c t a b l e 11 UNIDROIT Principles, supra, note 1, art. 1.1 and respective comments. 12 Id., art 1.4 and respective comments. 13 On this subject, see: Nadia de ARAÚJO, Contratos Internacionais: Autonomia da Vontade, Mercosul e Convenções Internacionais, 2ª ed., RJ, Renovar, 2000; H a roldo VALLADÃO, D i reito Internacional Privado, 5ª ed., RJ, Freitas Bastos, 1980, v. 1, p. 111, at 361.
THE UNIDROIT PRINCIPLES AND MERCOSUR COUNTRIES 385 solution for the determination of the law governing their transactions. In cases where the Principles are chosen, the agreement will be governed by an organized set of rules that are fully instrumented to accommodate the specific needs of international trade 14 . Nonetheless, even in countries whose conflicts-of-laws rules traditionally embrace the choice-of-law autonomy principle, we can note, sometimes, a strong resistance in accepting the Principles as the law applicable to a contract. Such situation results from the restrictions imposed to the parties or national judges in most legal systems to accept the choice in favor of a non-legislative system, transnational in nature, such as the Principles. Generally speaking, those who support such prohibition argue that a contract cannot exist entirely disconnected from a national legal system; in other words, a « contract without law » cannot be valid. In spite of the increasing transnational character of commerc i a l transactions and the apocalyptical voices that announce the end of nation States, domestic laws remain as solid pillars for the application of international law, be it in the form of intern a t i o n a l conventions and treaties ratified by the world nations, or by means of the application of the domestic conflicts-of-laws rules. Along these lines an eminent Brazilian scholar once stated that: When in Private International Law the parties’ will chooses the applicable law, it is because another law, that of Private International Law, authorized it to proceed in such way, offering it such freedom. 15 The scholar’s lesson is greatly pertinent when we bear in mind that the Latin American countries’ legal systems, which make part of the Civil Law tradition, were formed on the basis of the Iberian Peninsula law, strongly centralizing and State-oriented 16 . It is not surprising that the choice-of-law autonomy in contractual matters, nowadays widely accepted by most European and North-American legal systems, still finds resistance in the South-American countries, whose conflict rules derive from XIXth 14 Friedrich K. JUENGER, “The Lex Merc a t o r i a and Private International Law“, (2000) 1 Unif. L. Rev. 179. 15 H. VALLADÃO, op. cit., note 13, p. 363. 16 Alfredo BUZAID, “Juízo Arbitral”, (1959) 181 Revista Forense 453.
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